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21 Sept. 1803
Evidence
Note
Instructions
Considerations
1. Interests in general
Situations
Party and witness
4. A cause particularly connected with the actual state of English jurisprudence is the want of the means of commanding the testimony of unwilling witnesses, of witnesses whom possession of the required facts is inferred from their situation, at the time in question, in a word from any other source than information furnished directly or indirectly from themselves. The effect of this deficiency will be most readily and clearly perceived, by the observation of those cases to which it does not extend. On the occasion of those preliminary examinations which have place in the case of prosecutions for such crimes as have been raised by the law to the rank of felonies witnesses /evidence/ of all sorts is brought forward as fast as the lights afforded by one witness serve to indicate the further lights that may be expected from another; and the testimony of witnesses where testimony /evidence/ being of the hearsay kind could not be with propriety received into the mass of evidence of which the grounds of the decision are comprised, may yet in the character of indicative evidence serve to bring to light the testimony of immediate witnesses who being ill disposed to that side of the cause which stood in need of their assistance would not have come forward of themselves, nor would have been brought forward at all but for the indication so obtained.
But the greater the number of unwilling witnesses are by the above or any other cause excluded the greater of course must be the number of willing witnesses in proportion to the whole number brought forward and considered.
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Title: [21 Sept. 1803 Evidence Note]Description: 21 Sept. 1803 Evidence Note [...?] Note. Instruction Considerations 1. Interests in general Situations Party of witness Unwilling, few 2. Another cause is that so far as a man has his choice of witnesses, and that among /of/ the persons who are pointed out to him by their respective opportunities as likely to have obtained these /such/ perceptions as /which/ with relation to the facts in question have rendered them percipient witnesses, such and such alone will naturally be called upon by him to come forward in the character of disposing witnesses as he expects to find well disposed, or at least not ill-disposed to his side of the cause. but so long as they are not ill disposed, if before their being thus called upon they were but neutrals, the tendency of the cause already /above/ noticed, is as is there observed, to render them favourable, to range their wishes and partialities on his side. 3. The case is the same, so far as the [...?] of witnesses results from the [...?] of fact. Among the evidentiary facts which the cause furnishes, such and such alone will naturally be endeavoured to be established, the evidence of which presents itself as a mass as likely to operate in favour of the principle fact which the nature of his claim engages him to establish. If in this way this or that fact threatens to make[...?] against him, he will turn aside for it, and leave to the adversary /other side/ the evidence bringing forward the fact with the evidence by which it would be established.
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Title: [26 Sept. 1803 Evidence Instructions]Description: 26 Sept. 1803 Evidence Instructions Considerations Makeshift Hearsay Second species of Makeshift evidence - Hearsay Evidence contestable, Oral evidence of oral evidence: oral evidence sanctioned scrutinized and cross-examined of oral evidence neither sanctioned, not contestable, sanctioned nor scrutinised nor cross-examined. 1. In the case of hearsay evidence, against the characteristic fraud, the same precautions /vigilance/ will be requisite on the part of the Judge as in the case of written casual evidence. And moreover to this danger is added that of unintentional incorrectness in the relation /statement/ given by the deposing witness of the discourse supposed to have been uttered in his presence by the supposed percipient witness. 2. In the case of hearsay evidence of more than one remove the Judge will of course resort at once to the supposed percipient witness the correspondence /the attention of the Judge and through him of the parties/ will of course be directed at once to the supposed percipient witness. Should he be at home and forthcoming, the occasion for applying to any intermediately reporting witness or witnesses will of course cease. Should he be be in foreign parts, every thing that relates to the provisional admission of his evidence and to the purification of it applies to this case in the same manner as to that where between the deposing witness and the supposed percipient witness there is no supposition of any intermediate witness /pen or tongue/.
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Title: [5 June 1803 Evidence Instructions]Description: 5 June 1803 Evidence Instructions Best II - in point of substance 1 First hand with Hearsay 2. Second class of Cases - where in a /each/ pair of contrasted species of evidence the distinction turns not upon the form or mode of exhibition a circumstance variable at the pleasure /command/of the legislator, but upon substance - upon the unchangeable nature of the evidence itself. 1. Comparison the first /fourth/. Evidence at first hand with Hearsay Evidence. The superiority of first hand evidence our hearsay evidence of even the first remove, and a fortiori of any /every/ ulterior remove stands upon ground of the same sort with the superiority of original over transcriptitious evidence in the particular case of written evidence: upon ground of the same sort /like texture/, but upon much clearer and stronger ground. Mendacity apart, in the case of transcriptitious written evidence, the sole /only/ efficient cause of uncorrectness /aberration/ to the influence /action/ of which it is exposed is a deficiency /failure/, in point of attention: in the case of hearsay evidence, the same cause operates with augmented force, with the addition of another very powerful cause - failure in point of memory; a cause, the force of which goes on encreasing ad infinitum with the distance in point of time between the hearing of the supposed extrajudicial statement or narrative, and the repetition supposed to be made or said to be made of it for the purposes of justice. Thus much upon the ground of simple incorrectness: a ground which of itself is amply sufficient to warrant the decided and invariable /neverfailing/ superiority of first-hand over the best possible modification of hearsay evidence. On the ground of mendacity and fraud, the persuasive force of hearsay evidence stands exposed to further defalcations. But these together with other matter relative to hearsay evidence /the form and application/ will form the subject of a chapter bearing the name of that species of evidence for its title. The choice as between Evidence at first hand and hearsay evidence depends (it may be said /objected/) upon the legislator in this case as well as in the three former ones: inasmuch for where the percipient witness is forthcoming, it depends upon the legislator either to insist upon his coming forward in the character of a deposing witness, or to accept of his testimony i:e: of what passes for his testimony, through the medium of another person who in such case takes upon himself the function of a deposing witness. This much can not be disputed: but in this case, the question turns not upon the form but upon the very substance of the evidence. The question is not in what form the evidence /testimony/ of a given witness shall be exhibited, but whether in a case where the testimony of a single witness would be the best it shall be weakened in this way by the [...?] /substitution//addition/ of a second witness /an unnecessary witness or a necessary one/.
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